February 6, 2019- New Mexico Bank & Trust v. Del Reanne Lucas, No. A-1-CA-35486

OCR transcription for search; preserved printed pages are authoritative

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Filed 2/6/2019 9:33 AM

M4

Mark $a

NEW MEXICO BANK & TRUST,
Plaintiff/Counterdefendant-Appellee,
v. No. A-1-CA-35486
DEL REANNE LUCAS,
Defendant/Counterclaimant-Appellant,

and

BERNALILLO COUNTY;

ERIK HIGLEY; PRIMROSE POINTE
HOMEOWNERS’ ASSOCIATION, INC.;
and TRISH THURSTON,

Defendants.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Nan G. Nash, District Judge

Jurgens & With, P.A.
James R. Jurgens
Santa Fe, NM

Keleher & McLeod, P.A.
Thomas C. Bird
Albuquerque, NM

for Appellee

Cravens Law LLC
Richard H. Cravens, IV
Albuquerque, NM

for Appellant

1 	MEMORANDUM OPINION
2 VANZI, Judge.
3 {I} 	This appeal arises from an in rem foreclosure action commenced by Plaintiff
4 New Mexico Bank & Trust, successor-by-merger to Community Bank (collectively,
5 Bank), after Defendant-Appellant Del Reanne Lucas (Borrower) failed to make
6 payments on a home equity line of credit (HELOC). Borrower appeals from the
7 district court's summary and default judgment, decree for foreclosure and order of
8 sale (Final Order), entered following the district court's order granting Bank's
9 summary-judgment motion and denying Borrower's summary-judgment motion.
10 	We affirm, although on grounds different from those stated by the district court.
11 	BACKGROUND
12 	{2} 	Borrower represents the facts as undisputed. On January 19, 2010, Borrower
13 	executed and delivered the HELOC at issue to Community Bank (a New Mexico-
14 chartered bank) in the original amount of $78,000, secured by a duly recorded
15 	mortgage (Mortgage) creating a lien on property located at 8803 Primrose Court, NE
16 in Albuquerque (Property). The Mortgage is a valid lien on the Property. New
17 Mexico Bank & Trust, also a New Mexico-chartered bank, is the successor-by-
18 merger to Community Bank and the owner and holder of the HELOC and Mortgage.
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1 Borrower's Bankruptcy Discharge
2 	{3} 	On May 20, 2014, Borrower filed a voluntary Chapter 7 bankruptcy petition,
3 thereby staying "any act to create, perfect, or enforce against property of the debtor
4 any 	lien to 	the 	extent that 	such 	lien 	secures 	a claim that 	arose 	before 	the
5 commencement of the case under this title[.]" 	11 	U.S.C. 	§ 362(a)(5) (2012).
6 Borrower's Schedule D (Creditors Holding Secured Claims) listed the HELOC debt
7 in the amount of $76,100.
8 	{4} 	On June 10, 2014, Bank's counsel asked in an email to Borrower's bankruptcy
9 counsel whether Borrower would "reaffirm the debt to [Bank]" and whether Bank
10 should "continue to send computer generated billing notices for the payments due to
11 	the debtor, or [if counsel took] the position that the stay prohibits it." Borrower did
12 not consent to Bank's request. Borrower disputes that she herself received the email
13 	or notice of the inquiry from her bankruptcy counsel.
14 	{5} 	On August 28, 2014, the bankruptcy court issued an order discharging
15 	Borrower's debts pursuantto 11 U.S.C. § 727 (2012), including Borrower's personal
16 (in personam) liability for the amount owed on the HEi,oc. 	A discharge in
17 bankruptcy "operates as an injunction against the commencement or continuation of
18 	an action, the employment of process, or an act, to collect, recover or offset any such
19 debt as a personal liability of the debtor, whether or not discharge of such debt is
20 waived." 11 U.S.C. § 524(a)(2) (2012). The discharge injunction does not enjoin
3

1 enforcement of a creditor's lien against real property. See, e.g., Johnson v. Home
2 State Bank, 501 U.S. 78, 83-84 (1991) (explaining that the bankruptcy discharge
3 "extinguishes only the personal liability of the debtor"; "the [Bankruptcy] Code
4 provides that a creditor's right to foreclose on the mortgage survives or passes
5 through the bankruptcy"; and "[e]ven after the debtor's personal obligations have
6 been extinguished, the mortgage holder still retains a right to payment in the form of
7 its right to the proceeds from the sale of the debtor's property" (internal quotation
8 marks and citation omitted)).
9 Bank's Post-Discharge Foreclosure Action
10 	{6} 	Borrower did not make the monthly HELOC payment due August 21, 2014,
11 	and failed to make other monthly payments due thereafter. On January 22, 2015,
12 Bank filed a complaint for foreclosure 	(in rem), 	seekirig to foreclose 	on the
13 	Property. 1 In addition to allegations concerning Borrower's default and Bank's right
14 to 	foreclose, 	the 	complaint noted the bankruptcy discharge 	of Borrower's in
15 	personam liability on the HELOC. The complaint did not allege that Bank provided
16 notice to Borrower unq.er New Mexico's Home Loan Protection Act (HLPA),
17 NMSA 1978, §§ 58-21A-1 to -14 (2003, as amended through 2009), which provides,
18 	in pertinent part: "Before an action is filed to foreclose or collect money due pursuant
1The complaint named other defendants in addition to Borrower. We address
only the issues pertinent to Bank and Borrower.
4
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1 to a home loan or before other action is taken to seize or transfer ownership of
2 property subject to a home loan, the creditor or creditor's assignee of the loan shall
3 deliver to the borrower a notice of the right to cure the default informing the
4 borrower of' certain information. Section 58-21A~6(A).
5 {7} 	Borrower's answer to the complaint asserted several general affirmative
6 defenses, which did not include a defense based on HLP A, and reserved the right to
7 assert additional defenses. After Bank moved to compel discovery responses from
8 her, Borrower filed an "Objection to Written Discovery, Deposition, and Motion for
9 Protective Order," arguing (among other things) that the HELOC debt had been
10 discharged in bankruptcy; Bank was the junior mortgage holder and had failed to
11 	notify the senior mortgage holder of the foreclosure action; and Bank's discovery
12 "furthers the abuse of process that started with the filing of a Complaint without
13 	probable cause." In a "Reply in Support of Her Objection," Borrower also asserted
14 that she was not in default.
15 	{8} 	Months later, on November 10, 2015, Borrower moved to vacate the district
16 court's scheduling order and trial on the grounds that Bank "did not give Notice or
17 a chance to Cure before filing the Complaint"; Bank was "prohibited from filing the
18 	Complaint in Foreclosure without giving Notice and the opportunity to Cure" (citing
19 	Section 58-21A-6); and "[t]he violations of state law and covenant [of good faith
20 and fair dealing] require [Borrower] to seek leave of the Court to amend her Answer
5

1 and 	make 	Counterclaims." 	In opposmg Borrower's motion, 	Bank stated that
2 Borrower "did not consent to reaffirming the debt or that [Bank] could continue to
3 send computer notices of payments due" and that, in answering the foreclosure
4 complaint, 	Borrower 	did 	not 	raise 	a 	HLPA-based 	defense 	or 	assert 	any
5 counterclaims. 	Bank 	argued 	that 	Borrower's 	motion 	was 	untimely 	and 	that
6 amendment would be futile because, while "a post-discharge act to enforce a lien
7 against real property of a debtor (to collect a debt in rem), does not violate the
8 discharge injunction[,]" Bank "could not send an HLPA notice without violating the
9 discharge injunction and exposing itself to being held in contempt of court and to
10 damages[,]" and "[p]ursuant to the Supremacy Clause, [Bank]' s duty to obey federal
11 	law overrides any state law duty to send a HLPA notice." "If [Borrower] is allowed
12 to assert a counterclaim under the HLPA," Bank argued, "she will be asking th[e
13 	district c]ourt [to] hold [Bank] liable for not sending a notice that would have
14 exposed [Bank] to being held in contempt of the Bankruptcy Court."
15 	{9} 	On January 4, 2016, Bank moved to dismiss the foreclosure action without
·16 prejudice, stating, "While [Bank] believes that an HLPA notice was preempted by
17 the discharge injunction, to avoid further unnecessary litigation on the issue [Bank]
18 will consent to dismissal of this case [to allow the Bank to provide the HLPA
19 Notice.]" The record contains no response to the motion from Borrower. On January
20 5, 2016, Borrower moved to amend her answer and assert counterclaims, arguing
6

1 the same grounds stated in her earlier motion to vacate. In a January 20, 2016 order,
2 the district court ruled that Bank's motion to dismiss and Borrower's motion to
3 amend were untimely, but granted Borrower's motion for leave to amend while
4 denying her motion to vacate.
5 	{to} 	The 	affirmative defenses asserted in Borrower's amended answer, 	filed
6 January 22, 2016, include that Bank failed to comply with state and federal law in
7 seeking foreclosure and failed to comply with and violated HLPA, and that HLPA
8 notice and right to cure "is a mandatory condition precedent to commencing suit."
9 The counterclaim alleged that Bank "was prohibited from filing the Complaint in
10 Foreclosure without giving Notice and the Right to Cure pursuant to [Section] 58-
11 	21A-6(A)" and asserted entitlement to recover damages and attorney fees 	for
12 violations ofHLPA, the Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -
13 	26 (1967, as amended through 2009), and the covenant of good faith and fair dealing,
14 and for malicious abuse of process and civil conspiracy.
15 	Dispositive Motions
16 	{11} 	On December 4, 2015, (before filing the amended answer and counterclaim)
17 Borrower moved for summary judgment on the foreclosure complaint, arguing that
18 Bank "is prohibited from filing the Complaint in Foreclosure without giving Notice
19 and the opportunity to Cure" (citing Section 58-21A-6); Bank's failure "to give
20 Notice or a chance to Cure violates the covenant of good faith and fair dealing"; and
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1 the filing 	of the foreclosure 	action without first providing notice and a cure
2 opportunity constitutes a violation of ·HLPA and a per se violation of the UP A.
3 Borrower also argued, relying exclusively on Bank ofN Y. v. Romero, 2014-NMSC-
4 007, 320 P.3d 1, that "HLPA is not preempted by federal law."
5 	{12} 	On December 10, 2015, Bank moved for summary judgment, arguing (as
6 relevant here) that it properly exercised its rights under the HELOC and Mortgage
7 by filing its complaint for "in rem foreclosure of the lien of the Mortgage as against
8 the Property"; and that it also was entitled to judgment as a matter of law on
9 Borrower's affirmative defenses because (among other things) the Mortgage did not
10 require notice after default and Bank was prohibited from sending a HLPA notice
J 1 because "it would have violated the bankruptcy discharge injunction and exposed
12 	[Bank] to being held in contempt of court and for damages." Bank also argued that
13 	"[p]ursuant to the Supremacy Clause, [Bank]'s duty to obey federal law overrides
14 any state law duty to send a HLPA notice."
15 	{13} 	In its December 22, 2015 opposition to Borrower's summary-judgment
16 motion, Bank admitted it did not give Borrower notice of default before filing the
17 foreclosure 	complaint, but asserted that Borrower "refused to 	consent to the
18 continuation of payment notices and [Bank] was prohibited from sending a notice to
19 	[Borrower] demanding payment by 11 U.S.C. § 542(a)(2) [(2012)]." Bank argued
20 (among other things) that Borrower's lack-of-notice defense was barred by equitable
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1 doctrines, and reiterated its arguments that the Mortgage did not require notice after
2 default and that Bank was prohibited from sending a HLPA notice because, although
3 "the injunction created by § 542(a) does not affect a creditor's lien against real
4 property[,]" 	Bank could not comply with HLPA 	Section 58-21A-6 "without
5 violating the discharge injunction and exposing itself to being held in contempt of
6 court and to damages." Under the heading "Federal Preemption," Bank argued that
7 it "could not obey the discharge injunction and comply with the HLPA's notice
8 requirements" 	and "[t]he Bankruptcy Code preempts the HLPA[,]" 	citing the
9 Supremacy Clause and stating that "[c]onflict preemption occurs either when
10 compliance with both federal and state law is a physical impossibility or when state
11 	law stands as an obstacle to the accomplishment and execution of the full purposes
12 and objectives of Congress." Bank also argued that Romero, 2014-NMSC-007,
13 	relied on by Borrower, did not control this case because Bank is a state-chartered
14 bank and Romero involved a nationally chartered bank and addressed whether
15 	HLPA was preempted by federal law not at issue here-the National Bank Act
16 (NBA), the Dodd-Frank Act, and federal regulations governing national banks.
17 	{14} 	In its December 28, 2015 opposition to Bank's summary-judgment motion,
18 Borrower admitted that Bank is a state-chartered bank. In reiterating her argument
19 that the filing of the foreclosure action without first providing notice and a cure
20 opportunity constitutes a violation of HLPA and a per se UPA violation, Borrower
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1 asserted (citing no authority) that notice and opportunity to cure under HLPA
2 Section 58-21A-6 "is a statutory condition precedent to a foreclosure action in New
3 Mexico" and that failure to provide such notice and opportunity to cure is "a clear
4 violation of the [HLPA], which is a per se violation of the UPA."
5 {15} 	In an order entered February 9, 2016, the district court denied Borrower's
6 summary judgment motion and granted Bank's summary judgment motion, ruling
7 that Bank was "entitled to summary judgment for in rem foreclosure of the lien of
8 the Mortgage as against the property" and "entitled to summary judgment on
9 [Borrower]'s affirmative defenses." In so doing, the court noted that "[Bank]'s
10 failure to comply with HLPA is 	[Borrower]'s only real challenge to [Bank]'s
11 	Complaint" and that Borrower's challenges to Bank's facts "failed to meet the
12 standard set forth in Rule 1-056(D)(2) [NMRA]." The court based its order on the
13 	bankruptcy discharge injunction and conflict preemption, concluding that "the
14 bankruptcy discharge injunction prohibited [Bank] from sending a HLPA notice";
15 	"[t]he requirements of HLPA, requiring notice to the debtor prior to foreclosure
16 proceedings 	conflict 	with 	the 	federal 	bankruptcy 	discharge 	injunction" 	and,
17 therefore, Bank "could not give the required state HLPA notice while also refraining
18 	from the facially impermis'sible actions with regard to the discharge injunction"; and
19 "Section 58-21A-6 	is 	preempted by federal bankruptcy law." In reaching its
20 conclusions, the district court rejected Borrower's reliance on our Supreme Court's
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1 decision in Romero, reasoning that Romero was "based on the analysis of the federal
2 law at issue, which addressed national banks ... not federal bankruptcy law, as in
3 the present matter" and that "[t]he Romero holding cannot logically be understood
4 as precluding a conclusion that unrelated federal laws do not preempt HLPA." The
5 court did not address the other arguments raised in the parties' summary judgment
6 motions.
7 Final Order, Notice of Appeal and Property Sale
8 {16} 	The district court issued its Final Order on March 1, 2016, holding (among
9 other things) that Bank was entitled to summary judgment on Borrower's affirmative
10 defenses and counterclaim and ordered that Borrower's affirmative defenses and
11 	counterclaim be dismissed with prejudice. As in its earlier order on the summary-
12 judgment motions, the court concluded that "[t]he bankruptcy discharge injunction
13 	prohibited [Bank] from sending a HLPA notice"; "[t]he requirements of HLPA,
14 requiring notice to the debtor prior to foreclosure proceedings conflict with the
15 	federal bankruptcy discharge injunction" and, therefore, Bank "could not give the
16 required state HLPA notice while also refraining from the facially impermissible
17 actions with regard to the discharge injunction"; and "Section 58-21A-6 [of the
18 HLPA] is preempted by federal bankruptcy law."
19 	{17} 	The Final Order also held that Bank "was entitled to accelerate all amounts
20 owed on the HELOC and foreclose the Mortgage in rem" and ordered that "[t]he
11

1 Mortgage is foreclosed and the Property shall be sold to satisfy the indebtedness
2 owed to [Bank] under the HELOC, free and clear of all right, title and interest of all
3 the defendants." The Final Order included other rulings and orders concerning the
4 amount owed on the HELOC, attorney fees and costs, and matters related to the sale
5 of the Property, and also referenced the need for a subsequent order approving the
6 foreclosure sale.
7 	{18} 	On March 10, 2016, after she filed her notice of appeal from the Final Order
8 on March 9, 2016, Borrower moved in the district court to stay the judgment pending
9 appeal, which relief Bank opposed unless Borrower posted a bond. On April 14,
10 2016, the Special Master appointed to conduct the sale of the Property filed a report
11 	describing the sale held April 13, 2016, at which the "[n]o objections were raised by
12 any party or person present to the conduct of the sale" and Bank was the highest
13 	bidder. The proposed Special Master's Deed, submitted with the report for the
14 district court's approval, purported to convey the property "subject to a first
15 	mortgage believed to be in favor of J.P. Morgan Chase and believed to be in the
16 approximate amount of $390,000." The Special Master requested that "the [district
17 c]ourt approve and ratify his acts," including the proposed "Special Master's Deed
18 	and costs of sale[.]" The record on appeal does not include an order approving or
19 confirming the sale or any filings challenging the sale.
12

1 DISCUSSION
2 	{19} 	In ruling against Borrower and in favor of Bank, the district court recognized
3 that "[Bank.J's failure to comply with HLPA is [Borrower]'s only real challenge to
4 [Bank.J's Complaint" and that Borrower's challenges to Bank's facts "fail[ed] to
5 meet the standard set forth in Rule 1-056(D)(2)." But the court did not address
6 Borrower's argument that notice and opportunity to cure under HLPA Section 58-
7 21A-6 "is a statutory condition precedent to a foreclosure action in New Mexico[,]"
8 resting its decision on the conclusions that "the bankruptcy discharge injunction
9 prohibited [Bank] from sending a HLPA notice"; "[t]he requirements of HLPA,
10 requiring notice to the debtor prior to foreclosure proceedings conflict with the
11 federal bankruptcy discharge injunction" and, therefore, Bank "could not give the
12 required state HLPA notice while also refraining from the facially impermissible
13 	actions 	with 	regard 	to 	the 	discharge 	injunction"; 	and 	"Section 	58-21A-6 	is
14 preempted by federal bankruptcy law." Even assuming, arguendo, that the district
15 	court erred in these rulings, as Borrower contends, nothing in HLPA's text bars the
16 filing and prosecution of an 'in rem foreclosure action.
17 	{20} 	Because we conclude that entry of judgment .in favor of Bank a11d against
18 Borrower is proper even if HLPA is not preempted, we affirm without ruling on the
19 preemption issue. See, e.g., Bd. of Cty. Comm 'rs of v. Chavez, 2008-NMCA-028,
20 , 	12, 143 N.M. 543, 178 P.3d 828 (explaining that "the reviewing court is not limited
13

1 to the district court's reasoning in affirming a grant of summary judgment" and
2 noting the well-established principle that "an appellate court will affirm the district
3 court if it is right for any reason and if affirmance is not unfair to the appellant"
4 (internal quotation marks and citations omitted)). Borrower's contention that the sale
5 should be set aside is not properly before us, as the district court must enter an order
6 approving and confirming the Property sale and no such order is in the record.
7 A. 	Standard of Review
8 {21} 	"Summary judgment is appropriate where there are no genuine issues of
9 material fact and the movant is entitled to judgment as a matter oflaw." Selfv. United
IO Parcel Serv., Inc., 1998-NMSC-046, ,r 6, 126 N.M. 396, 970 P.2d 582. We review
11 	questions of law de novo, including the question whether a party is entitled to
12 judgment as a matter of law, see id., and questions concerning statutory construction
13 	and preemption, see also Baker v. Hedstrom, 2013-NMSC-043, ,r 10,309 P.3d 1047;
14 Alliance Health ofSanta Teresa, Inc. v. Nat'/ Presto Indus., Inc., 2005-NMCA-053,
15 ,r 25, 137 N.M. 537, 113 P.3d 360.
16 B.
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19 	1.
20 	{22}
21
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The District Court Did Not Err In Entering Judgment In Bank's Favor,
Dismissing Borrower's Affirmative Defenses and 	Counterclaim, and
Denying Borrower's Summary Judgment Motion
Section 58-21A-6 Does Not Bar Bank's Foreclosure Complaint
HLPA Section 58-21A-6(A) provides:
A. 	Before an action is filed to foreclose or collect money due
pursuant to a home loan . . . the creditor or creditor's assignee of the
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loan shall deliver to the borrower a notice of the right to cure the default
informing the borrower of:
( 1) 	the nature of the default;
(2) 	the borrower's right to cure the default by paying
the sum of money required[;]
(3) 	the date by which the borrower may cure the default
to avoid a court action, acceleration and initiation of foreclosure or
other action to seize the property[;]
(4) 	that if the borrower does not cure the default by the
date specified, the creditor or assignee may file an action for money due
or take steps to terminate borrower's ownership in the property by
requiring payment in 	full 	of the 	home 	loan 	and 	commencing 	a
foreclosure proceedings or other action to seize the property; and
(5) 	the name and address and telephone number of a
person whom the borrower may contact if the borrower disagrees with
the assertion that a default has occurred or the correctness· of the
calculation of the amount required to cure the default.
Borrower contends that "[p]roviding Notice and Right to Cure pursuant to
20 HLPA is a statutory condition precedent, without which suit may not be filed."
21 	Borrower cites no authority for this proposition, other than Section 58-21A-6(A).
22 She simply asserts that Bank "knew, or should have known, that controlling law
23 	prohibited the foreclosure action without first giving Notice and the Right to Cure"
24 and that she "believes" that "providing HLPA Notice and the Right to Cure is a
25 	statutory condition precedent to filing· suit for foreclosure in New Mexico[.]"
26 Borrower has not shown that Bank's failure to comply with the requirements of
27 Section 58-21A-6(A) barred Bank's foreclosure action.
19 	{23}
15

1 {24} 	When a statute contains language which is clear and unambiguous, courts
2 "must 	give 	effect 	to 	that 	language 	and 	refrain 	from 	further 	statutory
3 interpretation." United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030,
4 ~ 9, 148 N.M. 426 (internal quotation marks and citation omitted). Section 58-21A-
5 6(A) does state that a creditor "shall" inform a borrower of the right to cure before
6 filing its action. Section 58-21A-6(A). But nothing in Section 58-21A-6(A), or
7 elsewhere in the HLPA, provides that a creditor's failure to comply with Section 58-
8 21A-6(A) operates to deprive the creditor of its legal rights or deprive the district
9 court of jurisdiction over an in rem foreclosure action. And courts may not "read
10 into [a] statute language which is not there, [particularly if it] makes sense as
11 	written." Levario v. 	Ysidro Villareal Labor Agency, 1995-NMCA-133, ~12, 	120
12 N.M. 734 (internal quotation marks and citation omitted).
13 	{25} 	Our Supreme Court has admonished, moreover, that courts must analyze a
14 "statute' s function within a comprehensive legislative scheme" and may not consider
15 	subsections "in a vacuum[.]" State v. Rivera, 2004-NMSC-001, ~ 13, 134 N.M. 768,
16 	82 P .3d 939 (internal quotation marks and citation omitted). Subsection E -within
17 	Section 58-21A-6 further undennines any argument that the Legislature intended to
18 condition the right to bring a foreclosure action (or jurisdiction over such cases) on
19 compliance with Subsection A's notice requirement, making clear that alleged
20 violations of HLPA may be asserted as claims or defenses in a foreclosure action.
16

1 See§ 58-21A-6(E) (stating that a creditor "that has the legal rig~t to foreclose shall,
2 in a foreclosure, use the judicial foreclosure procedures provided by law" and that
3 the borrower may assert in such proceeding "the nonexistence of a default and any
4 other claim or defense to acceleration and foreclosure, including any based on a
5 violation of the [HLPA], though no such claim or defense shall be deemed a
6 compulsory counterclaim").
7 	{26} 	Other statutes contain clear language identifying bars to suit. See, e.g., NMSA
8 1978, § 41-4-16(B) (1977) ("No suit or action for which immunity has.been waived
9 under the Tort Claims Act shall be maintained and no court shall have jurisdiction
10 to consider any suit or action against the state or any local public body unless notice
11 	has been given as required by this section, or unless the governmental entity had
12 actual notice of the occurrence."). Had the Legislature intended non-compliance
13 	with Section 58-21A-6(A) to operate as a bar to the filing of a foreclosure action, it
14 would have said so. See State v. Greenwood, 2012-NMCA-017, 138,271 P.3d 753
15 	("The Legislature knows how to include language in a statute if it so desires.")
16 (alteration, internal quotation marks, and citation omitted). And it would not have
17 stated in Section 58-21A-6(E) that alleged violations of HLPA may be asserted as
18 	claims or defenses in a foreclosure action. See also NMSA 1978, § 12-2A-19 (1997)
19 ("The text of a statute or rule is the primary, essential source of its meaning."); N.M
20 Bd. of Veterinary Med. v. Riegger, 2007-NMSC-044, 111, 142 N.M. 248, 164 P.3d
17

1 947 ("We will construe the entire statute as a whole so that all the provisions will be
2 considered in relation to one another." (internal quotation marks and citations
3 omitted)).
4 {27} 	Based on the foregoing analysis, we conclude that Borrower's "only real
5 challenge to [Bank]' s Complaint[,]" as the district court described it, fails as a matter
6 of law based on the text of Section 5 8-21 A-6, upon which Borrower relies. Because
7 Borrower's erroneous contention that compliance with Section 58-21A-6 is a
8 "statutory condition precedent" 	to 	a 	foreclosure 	suit forms 	the 	basis 	for 	all
9 Borrower's claims against Bank (e.g., UPA violation, breach of the covenant of good
10 faith and fair dealing, malicious abuse of process, conspira,cy) those claims too fail
11 	as a matter of law.
12 2.
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14 	{28}
Borrower Has Not Challenged Any Material Facts Upon Which the
District Court Based its Rulings
Summary judgment "shall be rendered forthwith if the pleadings, depositions,
15 	answers to interrogatories and admissions on file, together with the affidavits, if any,
16 show that there is no genuine issue as to any material fact and that the moving party
17 is entitled to a judgment as a matter oflaw." Rule 1-056(C). The district court stated
18 that Borrower's challenges to Bank's facts "failed to meet the standard set forth in
19 Rule 1-056(D)(2)." See id. (requiring party opposing summary judgment to submit
20 "a concise statement of the material facts as to which the party contends a genuine
21 	issue does exist" and "shall refer with particularity to those portions of the record
18

1 upon which the opposing party relies"; providing that "[ a ]11 material facts set forth
2 in the statement of the moving party shall be deemed admitted unless specifically
3 ·controverted"); Rule 1-056(E) NMRA ("When a motion for summary judgment is
4 made and supported as provided in this rule, an adverse party may not rest upon the
5 mere allegations or denials of his pleading, but his response, by affidavits or as
6 otherwise provided in this rule, must set forth specific facts showing that there is a
7 genuine issue for trial. If he does not so respond, summary judgment, if appropriate,
8 shall be entered against him.").
9 	{29} 	On appeal, Borrower does not challenge any material facts upon which the
10 district court based its rulings. To the contrary, Borrower represents the facts as
11 	undisputed. Accordingly, Borrower has not shown any error in the district court's
12 entry of summary judgment in favor of Bank based upon the existence of a genuine
13 	dispute of material fact requiring trial.
14 3.
15
16 	{30}
Borrower Has Not Shown Harm From Non-Compliance With Section 58-
21A-6(A)
The HLPA provision authorizing civil actions gives standing to borrowers
17 "harmed by a violation of the [HLPA]." Section 58-21A-9. Although Borrower
18 asserts entitlement to recover damages and other relief for violations of HLPA, she
19 has not shown that she was "harmed" by Bank's failure to comply with Section 58-
20 21A-6(A). See Horne v. Los Alamos Nat'/ Sec., L.L.C., 2013-NMSC-004, 115,296
21 	P.3d 478 (explaining that "the party opposing summary judgment has the burden to
19

1 demonstrate the existence of specific evidentiary facts which would require trial on
2 the merits" and "may not simply argue that such· evidentiary facts might exist" or
3 "rest upon the allegations of the complaint") (alteration, internal quotation marks,
4 and citations omitted).
5 {31} 	For example, Borrower has not adduced evidence showing that she could or
6 would have cured the default had she been given notice and an opportunity to do so,
7 or that Bank's foreclosure action deprived her of her right to cure. See § 58-21A-
8 6(B) ("[T]he borrower ... may, at any time prior to the time the title is transferred
9 by means of foreclosure, by judicial proceeding and sale or otherwise, cure the
10 default and reinstate the home loan. Cure of the default shall reinstate the borrower
11 	to the same position as if the default had not occurred and shall nullify, as of the date
12 of the cure, an acceleration of any obligation under the home loan arising from the
13 	default."); Plaza Nat. Bank. v. Valdez, 1987-NMSC-105, 1 12, 745 P.2d 372 (title
14 transfers upon entry of order approving special master's sale).
15 	{32} 	Absent such evidence, Borrower's counterclaim fails as a matter of law. To
16 the extent a showing of harm is required to establish standing to sue under HLPA,
17 the counterclaim fails for lack of jurisdiction. AFSCME v. Bd. of Cty. Comm 'rs,
18 	2016-NMSC-Ol 7, 114, 373 P.3d 989 ("If a statute creates a right and provides that
19 only a specific class of persons may petition for judicial review of an alleged
20 violation, then the courts lack the jurisdiction to adjudicate that alleged violation
20

1 when the petition is brought by a person outside of that class."); Deutsche BankNat'l
2 	Trust Co. 	v. Johnston, 2016-NMSC-013, 111, 369 P.3d 1046 (where "a statute
3 creates a cause of action and designates who may sue," standing is "a jurisdictional
4 prerequisite to an action"); Disabled Am. Veterans v. Lakeside Veterans Club, Inc.,
5 2011-NMCA-099, 1 7, 150 N.M. 569, 263 P.3d 911 	("Our [c]ourts have long
6 recognized that when the issue of standing is considered jurisdictional, it may not be
7 waived and may be raised at any stage of the proceedings, even sua sponte by the
8 appellate court.") (internal quotation marks and citations omitted).
9 3.
10
11 	{33}
Borrower Has Not Properly Supported or Adequately Developed Any
Other Argument Requiring Reversal
Borrower cites no facts or legal authority supporting any other claim asserted
12 	in the counterclaim (e.g., UPA violation, breach of the covenant of good faith and
13 	fair dealing, malicious abuse of process, conspiracy) and we decline to consider
14 them. See Santa Fe Exploration Co. v. Oil Conservation Comm 'n, 1992-NMSC-044,
15 1 11, 114 N.M. 103, 835 P.2d 819 (an appellate court will not review issues raised
16 in appellate briefs and unsupported by cited authority); Muse v. Muse, 2009-NMCA-
17 003, 172, 145 N.M. 451, 200 P.3d 104 ("We will not search the record for facts,
18 	arguments, and rulings in order to support generalized arguments.").
19 C. 	Remaining Issues
20 	{34} 	It is understandable that the parties devote significant argument to the district
21 	court's conclusions that "the bankruptcy discharge injunction prohibited [Bank]
21

1 from sending a HLPA notice"; "[t]he requirements ofHLPA, requiring notice to the
2 debtor 	prior 	to 	foreclosure 	proceedings 	conflict 	with 	the 	federal 	ba~ptcy
3 discharge injunction" and, therefore, Bank "could not give the required state HLPA
4 notice while also refraining from the facially impermissible actions with regard to
5 the 	discharge 	injunction"; 	and 	"Section 	58-21A.;6 	is 	preempted 	by 	federal
6 bankruptcy law." As noted, however, even assuming that the district court erred in
7 reaching these conclusions, entry of judgment in favor of Bank and against Borrower
8 is nonetheless correct. Accordingly, we may affirm without reaching the issues of
9 the discharge injunction and preemption. See Bd. of Cty. Comm 'rs, 2008,.NMCA-
10 	028, ~ 12.
11 	{35} 	Finally, 	because 	the 	district 	court 	must 	enter 	an 	order 	approvmg 	and
12 confirming the Property sale and no such order is in the record, Borrower's
13 	contention that the sale should be set aside is not properly before us. See Speckner
14 v. Riebold, 1974-NMSC-029, ~ 9, 86 N.M. 275,523 P.2d 10 ("That part of the decree
15 	of foreclosure that directs the manner and terms of the sale of the mortgaged property
16 does not become a final judgment until the judicial confirmation of the sale,
17 whereupon it becomes final."); see also Kelly Inn No. 102, Inc. v. Kapnison, 1992-
18 NMSC-005, ~ 17, 113 N.M. 231, 824 P.2d 1033.
19 CONCLUSION
20 	{36} 	We affirm the district court's judgment.
22

—

ee)

4

Nn

,

37} ITISSO ORDERED.

WE CONCUR:

Ch G lebgea

JULAE J. VARGAS, Judge

x ‘

JACQUELINE R. MEDINA, Judge

23

MJ VANZI, Judge